Dr. Osama Siddique has authored an extensive report looking into the problems of Caseflow Management and administration of justice in Punjab through the support of the European Union Access to Justice Project and the Lahore High Court. The Report relies on newly excavated case file data, extensive analysis of the complex legal regime, and evaluation of organizational structure and human resource management dimensions of the Lahore High Court. It presents extensive recommendations for reform.

Dr. Osama Siddique has been appointed as the Inaugural Henry J. Steiner Visiting Professor in Human Rights at Harvard Law School. This new and prestigious Visiting Professorship is open to non-US scholars, judges and lawyers from all over the world who have made seminal contributions in the area of human rights. The appointment is by invitation only. The appointee is expected to teach two specially designed courses at Harvard Law School, deliver a series of special public talks and lectures hosted by Harvard Law School based research centers and programs, and engage in the various on campus academic and social activities.

The courses offered by Dr. Siddique are titled: (1) From Colonial to Post-Colonial: International Financial Institutions, Access to Justice and Human Rights, and (2) Public Interest Litigation and Constitutional Protection of Human Rights: The South Asian Experience.

The Minorities Blog features writings on the status and rights of minorities, including religious and ethno-linguistic minorities.

Maryam S. Khan

The rights struggle of intra-Muslim minority groups in various Muslim majority states reveals the huge diversity of thought, worldview and ethics within Islam itself. Even more importantly, it reveals that, oftentimes, intra-Muslim conflict is characterized by a dominant extremist minority that enjoys a near-monopoly over the use of violence in its encounter with a much larger non-violent, and at times, silent, threatened or persecuted, majority. The progression and intensification of sectarian violence in Pakistan – a country which is both at the center of globalized conflict and home to the second largest Muslim population in the world – is a stark illustration of this kind of intra-Muslim imbalance of power and status in Muslim majority countries. The following discussion on intra-Muslim conflict provides a historical overview of the growing “constitutionalization” of sectarianism in Pakistan since the 1970s – or the process of constitutionally articulating sectarian divisions and excluding various sects from equal rights and citizenship – as well as the politics behind it.

Pakistan’s “Islamic” Constitution

Pakistan’s first democratic constitution – Constitution of the Islamic Republic of Pakistan (1973 Constitution) – was promulgated more than a quarter century after its independence. From the time of Pakistan’s creation, the constitution-making process was deeply conflicted between Islam-neutral and Islamic visions of state formation. Earlier constitutional frameworks oscillated from an “Islamic Republic” (1956) to simply a “Republic” (1962), before swinging back to an “Islamic Republic” in 1973. The essence of the “Islamic Provisions” in the 1973 Constitution was to ensure that all existing and future laws would be “in conformity with the injunctions of Islam” as laid down in the two main sources of Islamic law, the Quran and Sunnah (or the sayings and practices of Prophet Muhammad). At the same time, the new Constitution sought to protect religious freedom. The constitutionally enforceable bill of rights, known as “Fundamental Rights,” included the right of every citizen to “profess, practice and propagate his religion” and of “every religious denomination and every sect” to “establish, maintain and manage its religious institutions.” They also included safeguards against religious taxation and compulsory religious instruction in educational institutions for a religion other than one’s own. Over time, the contradictions and ambiguities between the imposition of an overarching Islamic legality and the provision of religious rights led to constitutional-political sectarian battles.

Whose Islam, and Who is a Muslim?

Though arguably the “Islamic” vision of the state won out in the 1973 Constitution, it did nothing to settle the question of whose Islam was to be the defining ideology of the nation-state. Pakistan was overwhelmingly Muslim then as it is now (95 to 98% of the total population), but with a great deal of intra-Muslim diversity based on historical, political and ideological distinctions.

Historically, the two main sects are the majority Sunnis (75 to 80% of Muslims) and minority Shi’as (reportedly 10 to 20% of Muslims). The Sunni-Shi’a schism is an ancient one, rooted in political differences over succession after Prophet Muhammad’s demise in the seventh century. Both sects have further sub-groupings, as well as variations within and overlaps between sub-groups. The prominent Sunni sub-groups include:

Sufi – a largely non-political, mystical and ritualistic tradition organized around fraternal orders of saints that developed in the Indian Sub-Continent centuries ago;

Deobandi – a revivalist and anti-imperialist but socially conservative movement that emerged in mid-19th century colonial India to “purify” Islam of ideological innovations and accretions;

Barelvi – another movement in colonial India that was influenced by and arose in defense of Sufism in reaction to the strictures of Deobandi ideology;

Salafi-Wahabi – orthodox reformist movement that originated in 18th century Saudi Arabia and found a jihadist foothold in Pakistan during the Afghan war.

Within Shi’a Islam, the main groups include the Ithna Ashariyah and the minority Ismailis, whose split is defined by a combination of political and doctrinal differences.

There is a third sect known as the Ahmadiyya group that originated as a reformist movement in late 19th century colonial India. The Ahmadis constitute a small minority (roughly 2% of Muslims) and distinguish themselves from both Sunnis and Shi’as primarily on account of their heterodox belief in successor prophets to Prophet Muhammad.

One of the early sectarian contests to result from this internal diversity was the political settlement between the democratically elected, left-leaning government of Zulfikar Ali Bhutto and Deobandi Islamist groups – particularly Jamaat-i-Islami and Majlis-e-Ahrar – who spearheaded a movement against the Ahmadis. There had been much animosity between the Deobandis and Ahmadis since the religious disturbances of the 1950s. But in 1974, the conflict was taken to parliament for resolution. The objective of this exercise was to declare the Ahmadiyya sect un-Islamic. The resulting Second Amendment to the 1973 Constitution concretized a parochial and exclusive identity of a “Muslim” by casting out all those who “recognize as a prophet or religious reformer, any person who claimed or claims to be a prophet, in any sense of the word or of any description whatsoever, after Muhammad…”

The Second Amendment marked the early phase of the constitutionalization of sectarianism. This legal exclusion meant that Ahmadis could no longer aspire to high political offices of the country – like the President and the Prime Minister – for which being a “Muslim” was a constitutional requirement. But the contestation over an authentic Muslim identity became a much graver and pervasive issue with the installation of a military government and Pakistan’s involvement in the Afghan war.

Militarization, Islamization and Sectarian Polarization

In 1977, General Zia-ul-Haq, the notorious military leader, maneuvered a coup against the civilian government and suspended the 1973 Constitution. Incidentally, the militarization of the state was followed soon after by the start of the Afghan war in 1979. As billions of dollars worth of military aid poured into Pakistan from the United States and Saudi Arabia to resist the Soviet invasion in Afghanistan, Zia set the country on a path of a “jihadist” political economy. This included the mainstreaming of madrassahs (or religious seminaries) for training, recruiting and mobilizing the “mujahideen” (or Islamic fighters), enabling a drugs and arms trade across the Afghan-Pakistan border, and silencing political opposition through despotic laws. A major consequence of these policies was the proliferation and radicalization of state-sponsored madrassahs, particularly the more puritanical Deobandi and Salafi madrassahs, which provided the bulk of the mujahideen army.

In addition to cultivating militancy within madrassahs, Zia “Islamized” various laws to build political legitimacy for his authoritarian rule. The Islamization reforms entrenched within the 1973 Constitution an extreme variant of the Deobandi interpretive tradition, inspired by and almost merging seamlessly with Salafi-Wahabi ideology. This was an unprecedented move as it meant that all non Deobandi-fundamentalist Muslims, including a majority of Sunnis, were constitutionally reduced to a minority status. The only exception were “personal laws” concerning private matters like inheritance, marriage and divorce, maintenance, and child custody, in relation to which all Islamic sects and non-Muslim minorities were at liberty to apply their own theological jurisprudence.

Examples of the Deobandi ideological influence on the Islamization program include the “Hudood” laws that criminalized and harshly punished private immorality like drinking and illicit sexual relations; constitutional amendments that introduced parallel “Shariat Courts” to police compliance of laws with the “Injunctions of Islam”; and amendments to the country’s secular criminal laws that, among other things, introduced the concept of “blood money” for murder, corporal punishments, and draconian Islam-centric blasphemy laws. The peculiar thing about the latter was that, unlike the pre-Islamization blasphemy laws that could be characterized as religion-neutral hate speech laws, the new laws were intended to protect the religious sentiments exclusively of Muslims. The blasphemy law that specifically related to the sacrilege of Prophet Muhammad was punishable by death. Because of the deepening of sectarianism in later years, a majority of those formally accused of blasphemy have been Muslims belonging to different sects.

Zia also directly targeted the Ahmadis by criminalizing their religious practices under the blasphemy laws. Ahmadis were now restrained on a larger societal level from “preaching or propagating” their faith, or even “posing” as Muslims and referring to their faith as Islam.

The Courts have been willful partners in the constitutionalization of sectarianism. In the early 1990s, during a period of democratic transition, the Supreme Court had a significant opportunity to redefine the constitutional and public discourse on minority rights that was fast converging on a highly exclusionary, puritanical and punitive view of Islam. Instead, in a damaging judgment in 1993, the Court provided constitutional cover for General Zia’s Islamization program. It held that the criminalization of the Ahmadiyya sect did not violate the sect’s freedom of religion on the ground, amongst others, that the Ahmadis’ beliefs were an assault on the religious sentiment and freedom of the majority Muslim population.

Rise of a Dominant Extremist Minority

The decade of the 1990s was a period marked by a steady incline in sectarian violence. The Pakistani military and intelligence agencies continued to confer patronage on Afghan war veterans and other radical elements for suppressing internal insurgencies, resisting Iranian influence, and fighting regional turf wars like the Kashmir conflict between Pakistan and India. These forces coalesced into extremist and militant Islamic organizations. Post 9/11, they have not only grown in influence and pervaded different parts of the country, but have also formed labyrinthine connections and alliances with each other as well as state institutions and political parties for patronage, protection and funding leverage for their terrorist activities. New militant groups like the Tehreek-e-Taliban Pakistan have also sprung up as off-shoots of the insurgency movement in Afghanistan. These terrorists mostly represent minority-extremist Sunni groups – referred to variously as Deobandi-fundamentalist, Salafi-Wahabi, Takfiri and Pakistani Taliban – many of which are now banned terrorist organizations. Apart from various anti-state activities, these groups are at the forefront of politically and ideologically motivated sectarian violence, particularly anti-Shi’a violence. Thousands of Shi’as have succumbed to sectarian and target killings in the last decade, leading to claims about a “Shi’a genocide.” The Ahmadis, a dwindling and vulnerable minority, also continue to be brutalized.

But the Sunni militants also target fellow Sunnis. The recent attacks on Sufi shrines and the deadly Peshawar school massacre in 2014 that left more than 130 school children dead are examples of Muslim extremists terrorizing defenceless Muslim populations in retaliation for state action and public opposition against the Taliban in general, and military offensives and drone attacks in Pakistan’s tribal areas in particular. These incidents are stark reminders of the fact that “Muslim terrorists” are a dominantminority in respect of their capacity to use violence on a largely non-violent citizenry that has been virtually abandoned by a dysfunctional state.

Judicial Failure & the Political Consensus for Military Courts

While sectarianism is deeply embedded within Pakistan’s Constitution, the constitutional framework on its own does not fully reflect the extent of intra-Muslim conflict and social exclusion. One aspect of this is terrorist violence which is an evident reality. But there is another concealed picture of sectarianism which becomes apparent only when one closely studies formal institutional responses to violence. One example is the Supreme Court’s complete silence over and de-prioritization of religion-based rights and persecution of religious, including Muslim, minorities. The chart below shows the number of reported Fundamental Rights cases litigated – according to different categories – in the Supreme Court’s “public interest litigation” jurisdiction over a twenty-five year period. Only 2% cases (4 out of a total of 208) dealt with “religion-based rights,” of which 3 were dismissed, and the one case that was upheld related to an insignificant logistical issue of election rescheduling on account of a clash with a religious festival. The Court has also evaded framing the issue of sectarian violence as a matter of “life and liberty” or “right to dignity.”

This shows not only that the Supreme Court has generally abdicated its authority to deal with religion-based rights, but also that persecuted religious groups do not look upon the judiciary as a legitimate state institution for the protection of their rights. At the same time, the Court has directly contributed to sectarian violence by acquitting hundreds of alleged terrorists for lack of evidence, many of whom are reported to be involved in anti-state activities post-acquittal. Because of the institutional failure and myopia of both the government and judicial system to deliver justice, a recent political consensus has empowered military courts to undertake the investigations and trials for those accused of terrorist offences, and has lifted a six-year moratorium on the death penalty for sentencing those convicted of the latter. Current opinion on the military courts as a speedy and efficacious mechanism for dealing with terrorist-sectarian violence is divided. Critics point out the irony of expecting a fair, neutral and transparent process of justice from a state institution that has historically and systematically sponsored terrorists, and warn of a deteriorating civilian-military imbalance in the country. Almost a year after the transfer of judicial authority to the military courts, many terrorist ringleaders remain at large, with little indication of the government, military and intelligence making any more than farcical progress on curtailing religion-based violence.

A modified version of this essay appeared in an earlier 2015 edition of D+C (Development & Cooperation), available at: http://www.dandc.eu/en/article/how-radical-minority-came-define-pakistans-muslim-identity

We are pleased to announce that the Law and Society Association (LSA) has approved an International Research Collaborative (IRC) on South Asian Legal Systems that includes LPRN members Maryam S. Khan and Dr. Osama Siddique from Pakistan.

The LSA is an interdisciplinary scholarly organization – based in Utah (US) and supported by the University of Utah – committed to social scientific, interpretive, and historical analyses of law across multiple social contexts. It works with the scholarly community toward the interdisciplinary development of the field of sociolegal studies. The IRCs are an initiative of the LSA. They are multi-national and multi-disciplinary collaborative groups of scholars formed to pursue a specific scholarly project such as a book, a special symposium issue of a journal, or a collaborative research project.

Our IRC proposes a collaborative book project that engages with the overarching theme of parallel processes of law’s structural constancy and changing modes of agency across South Asian legal systems.

Members of the IRC will meet at the LSA Annual Meeting in New Orleans in 2016, and again in Mexico City in 2017 as part of the collaboration.

Dr. Osama Siddique’s book ‘Pakistan’s Experience with Formal Law: An Alien Justice (Cambridge: Cambridge University Press, 2013)’ is the recipient of the American Institute of Pakistan Studies (AIPS) Annual Book Prize, 2014-2015. The award was open to books published over the last three years as well as those about to go into print.

According to the Award Committee:

“Siddique’s book was chosen by the Committee because it focuses on an area not as much discussed as others like the military and geopolitical issues. Law and the multiple legal systems in play in Pakistan are major issues in contemporary Pakistan. Refreshingly, the book gives a *local* point of view, and displays the results of important bottom-up data gathering. Because of the relative novelty of its subject matter and clear, engaging prose, it is likely to attract numerous readers and draw potential scholars into the field of Pakistan studies.”

AIPS will publicly announce the award on October 24, 2015 at the AIPS Reception during the 44th Annual Conference on South Asia at the University of Wisconsin Law School, Madison, Wisconsin.

‘Pakistan’s Experience with Formal Law’ was also declared Winner of the Best Non-Fiction Book of the Year Award at Karachi Literature Festival, 2014.

The Judges and Politics Blog analyzes the interaction and relationship of the judiciary and judges with political institutions and actors.

Maryam S. KhanIn a recent study of Public Interest Litigation (PIL) and its nexus with judicialization of politics, I present an extensive empirical analysis of PIL jurisprudence in the Supreme Court of Pakistan. The analysis is based on a combination of quantitative and qualitative data collated from a study of all 218 reported PIL judgments of the Supreme Court over a 25-year period – from 1988 (in many ways, the year of PIL’s systematic emergence in Pakistan) to 2013 (the end of the erstwhile Chief Justice Iftikhar Chaudhry’s term in office). I divide PIL into chronological periods or “phases of judicialization” according to changes in political conditions. The objective of this periodization is to foreground the political choices of the Supreme Court in relation to both larger power struggles and the shifting positions of other political institutions, actors, and interest group mobilizations. The periodized study clearly shows that there are alternating periods of judicial activism on the one hand, and judicial retreat from political questions on the other. I refer to the former as “waves” and to the latter as “troughs.” On the basis of a combined evaluation of the qualitative and quantitative data, the study identifies three waves of judicial activism punctuated by two troughs signifying judicial retreat. These waves and troughs are further sub-divided into distinct phases that represent important milestones within each wave or trough. Here is a snapshot of this scheme:

First Wave of PIL Activism

Phase 1, 1988-1993
Except for the distinction attached to the two seminal cases of Benazir Bhutto v. Federation of Pakistan—regarding the freedom of association of a leading political figure—and Darshan Masih v. State—regarding the life and liberty of bonded laborers—PIL had gradual and modest beginnings.

Phase 2, 1993-1997This was a turning point for PIL. In many ways, this phase represents the apotheosis of PIL‘s jurisprudential development and innovation. It was also the phase during which PIL acquired a determinedly political character.

Judicial Retreat

Phase 3, 1998-2000With the expulsion of Chief Justice Sajjad Ali Shah in late 1997, the Supreme Court showed visible signs of retreat in its PIL activism.

Phase 4, 2000-2005With the military takeover of government in a coup in late 1999, the purged Supreme Court used PIL to legitimize General Musharraf’s regime. This is not to say that the court withdrew from intervention in political questions. To the contrary, the court adjudicated some of the most politically charged questions through PIL during this phase, but the proportion of unconstitutional rulings was at its lowest ever.

Second Phase of PIL Activism

Phase 5, 2005-2007Having survived through a critical phase of constitutional deviation, the court tried to restore its legitimacy and regenerate public confidence in its professed capacity to deliver justice to the common man. The court began with governance and policy questions of relatively low political salience, slowly building up its tempo and raising the stakes as it gained more visible publicity and support.

Phase 6, 2007The identification of PIL with the chief justice‘s reinstatement—in other words, the move from PIL as a mere instrument to an embodiment of judicial independence and power—marks a distinct phase in its evolution.

Judicial Retreat

Phase 7, 2007-2009With Musharraf’s second emergency and the consequent removal of a large majority of the incumbent judges, the court went into active retreat.

Third Wave of PIL Activism

Phase 8, 2009-2013In March 2009, Iftikhar Chaudhry was reinstated, for the second time, to the chief justiceship of the Supreme Court. With the unqualified ascendance of the Supreme Court over the government in combination with the popular political and social legitimacy on which it firmly rested, the court hoped to exercise its powers in an unrestrained and expansive manner. The most striking statistic of PIL activism in Phase 8 is the sheer quantity of reported Supreme Court judgments under its original jurisdiction. The court adjudicated nearly as many reported cases in Phase Eight as it did prior to it.

Here are some schematic representations of the waves and troughs of PIL-based judicialization that map trends in the frequency and proportion of “unconstitutional rulings” (broadly defined as rulings that declare executive action or legislation unconstitutional) over time.

Figure Six shows the relative frequency of reported rulings according to three general categories: (1) constitutional—those that uphold the constitutionality of executive action or challenged legislation; (2) unconstitutional—those that declare executive action or legislation unconstitutional, including interim orders, rolling reviews, and declaratory or directory cases that indicate a clear posture of the court toward a ruling of unconstitutionality; and (3) other—cases that have been admitted or registered for hearing, are at an initial inquiry stage, are interim judgments, or are limited to setting out guidelines, but in which the court reserves its opinion on the merits.

Figure Seven indicates the ratio of reported unconstitutional to constitutional rulings in different periods. It is interesting that in the first wave of judicial activism (Phases 1 and 2), the ratio of unconstitutional rulings vis-à-vis constitutional rulings was roughly 1:1, whereas in the second (Phases 5 and 6) and third waves (Phase 8), the ratio increased to 5.5:1. Clearly, judicial activism in the first wave was much more balanced and restrained than in the subsequent waves.

Figure Eight is a line graph representation of the data in Figure Seven. It brings into sharp focus the alternating waves and troughs signifying the waxing and waning of judicial power based on the percentage of unconstitutional rulings in PIL cases.

Dr. Osama Siddique’s research on the constitutional and legal genesis and on-going predicaments of the Federally Administered Tribal Areas (FATA) of Pakistan and provincially administered tribal areas like Swat, has appeared in a new book on comparative constitutional law. The chapter is titled: “The Other Pakistan: Special Laws, Diminished Citizenship and the Gathering Storm.” The book, titled: “Norms, Interests, and Values: Conflict and Consent in the Constitutional Basic Order” (Henning Glasser (ed.), Nomos: 2015), is the outcome of an international conference held in Bangkok in 2012 on constitutionalism in Continental Europe, and South and South-East Asia. The conference titled ‘Constitutional Jurisprudence – Function, Impact and Challenges,’ was organized by the German-South East Asian Center of Excellence for Public Policy and Good Governance with cooperation from Thammasat University, Thailand and in collaboration with Johann Wolfgang Goethe University Frankfurt am Main, Germany, Passau University Germany, and Westfälische Wilhelms-University Münster, Germany. The new book is part of the prominent CPG Series of Comparative Law, Politics and Governance.

Dr. Osama Siddique’s critical evaluation of the genesis, dynamics and aftermath of the Pakistani Lawyers’ Movement and particularly the Supreme Court of Pakistan’s controversial jurisprudence in its wake has appeared in a new book published by Cambridge University Press. Titled “The Judicialization of Politics in Pakistan: The Supreme Court after the Lawyers’ Movement”, the book chapter places the phenomenon of the increasing involvement of Pakistan’s apex court in political and policy frays within the framework of the larger and growing literature on global judicialization of politics; it argues that the Pakistani variant has certain distinct destabilizing features that merit special attention and also compel a revisiting of the current conceptual framework for understanding judicilaization of politics. The new book is titled “Unstable Constitutionalism: Law and Politics in South Asia” (New York: Cambridge, 2015) and is edited by Mark Tushnet (William Nelson Cormwell Professor of Law at Harvard Law School) and Madhav Khosla (Ph.D candidate in the Department of Government at Harvard University). The book brings together the writings of prominent constitutional scholars and political scientists working on South Asian constitutionalism, is informed by their deliberations in Delhi during the summer of 2013, and is the output of an on-going intellectual engagement supported by Harvard South Asia Institute. The following is a link to an earlier version of Dr. Siddique’s chapter The Judicialization of Politics in Pakistan: The Supreme Court after the Lawyers’ Movement (UNSTABLE CONSTITUTIONALISM: LAW AND POLITICS IN SOUTH ASIA (New York: Cambridge University Press) (2015)The following is a link to the new book Unstable Constitutionalism Law and Politics in South Asia. A South Asian edition of the book is currently in the works.

Dr. Osama Siddique has authored an extensive new Baseline Study that evaluates the current provision of legal advisory and representational aid in selected districts in Punjab and conducts an assessment of needs, such as various areas of legal aid that continue to be acutely neglected. The Study is titled “Legal Advisory and Representational Services in South Punjab: Key Findings of Baseline Study of Availability and Priority Needs.” The Study was undertaken with additional collaborators and in his capacity as a Consultant to Galway Development Services International (GDSI). Dr. Siddique also acts as a Senior Advisor to GDSI. It was funded by the European Union. The Study was introduced to a diverse audience of judges, senior government officials, lawyers, prosecutors, bar council representatives, international donor organization representatives, NGOs, journalists, and other justice sector stakeholders during the European Union’s Punjab Access to Justice Project Launch in Lahore on March 26, 2015.

Dr. Osama Siddique participated in the Institute for Global Law and Policy’s (IGLP) 2015 Conference which was held at Harvard Law School from June 1-2, 2015. The title of this year’s conference was “Heterodox Traditions: Global Law & Policy.” Over four hundred academics and doctoral as well as post doctoral scholars from all over the world attended this year’s conference and presented and participated in multiple parallel sessions. In addition, he also participated in the IGLP Colloquium which was restricted to a smaller group of senior scholars who deliberated over the multiple ways in which scholarship is disseminated and ought to be disseminated in different contexts. Held over June 3-4, 2015, the theme of this year’s Colloquium, therefore was, “Modes of Engagement.”